Monday, August 24, 2009

Humanitarian Law Project v. U.S. Treasury Dep't (9th Cir. - Aug. 24, 2009)

The majority opinion describes the issue presented with the following opening line: "We are asked to invalidate the President’s authority to designate terrorist organizations when there is an extraordinary threat to national security . . . ." At which point you can pretty much figure out where the rest of this one's going.

There's a dissent as well, and as between Judges Rymer and Pregerson, you can easily intuit which one's writing the majority opinion and which one's writing on the bottom side.

Personally, I didn't think plaintiffs here had much of a shot anyways. Certainly not in the Supreme Court (if it ever got there), and not even in the Ninth Circuit. The case was argued on appeal by a very bright academic, David Cole, and I have no problem whatsoever with the arguments that were made. But I think the best they had was a non-zero chance of prevailing.

Which may be enough, of course, for public interest work. At least if you ignore the downside of creating potentially bad precedent for future cases. Something to consider, anyway.

Of course, I could be totally wrong. Maybe this one gets taken en banc, reversed, and then affirmed by the Supreme Court on a 9-0. But somehow I doubt it. I think Judge Rymer wins this one.